In this long-awaited decision, the Supreme Court of Canada (SCC)
provides clarity on the "real and substantial connection"
test used by courts in determining whether to assume jurisdiction
over a matter. While the underlying facts and circumstances do not
involve mining, the decision is of great relevance for mining
companies that are engaged in business in multiple jurisdictions
within Canada or around the world.
The facts were as follows: in separate cases, two Canadians were
injured while on vacation in Cuba. Ms. Morgan Van Breda suffered
catastrophic injuries on a beach, and Mr. Claude Charron died while
scuba diving. Actions were brought in Ontario against a number of
parties, including the appellant, Club Resorts Ltd. (Club Resorts),
a company incorporated in the Cayman Islands that managed the two
hotels where the incidents occurred.
Club Resorts sought to have the proceedings in Ontario stayed or
dismissed, arguing that the Ontario courts lacked jurisdiction and,
in the alternative, that a Cuban court would be a more appropriate
forum on the basis of the doctrine of forum non
conveniens. In both cases, the motion judges found that the
Ontario courts had jurisdiction with respect to the actions against
Club Resorts and that the Ontario courts were clearly a more
appropriate forum. The two cases were heard together in the Ontario
Court of Appeal (ONCA) and both appeals were dismissed, with the
ONCA finding that Ontario courts had jurisdiction over the claims
and the parties, and that Ontario courts should not decline
jurisdiction on the basis of forum nonconveniens. Club Resorts then appealed to the SCC. In each
case, the SCC found that there was a sufficient connection between
Ontario and the subject matter of the litigation to justify the
Ontario courts assuming jurisdiction, and the appeals were
In reaching its decision, the SCC attempted to create a more
stable and predictable test for establishing whether there is a
real and substantial connection between the action and the forum
selected by the plaintiff. To satisfy the new real and substantial
connection test, the burden first falls to the plaintiff to
identify a presumptive connecting factor that links the subject
matter of the action to the forum. The SCC identified two
categories of presumptive connecting factors: "existing
factors" and "new factors" that must be analyzed
according to values of order, fairness and comity.
If a plaintiff succeeds in identifying a presumptive connecting
factor, there is a presumption that jurisdiction exists, but that
presumption is rebuttable by the party challenging jurisdiction. If
a presumptive connecting factor is not rebutted, the claim may
proceed, subject to the court's discretion to stay proceedings
on the basis of forum non conveniens. But if a court
concludes that it lacks jurisdiction because none of the
presumptive connecting factors exist or because the presumption of
jurisdiction has been rebutted, it must dismiss or stay the
A defendant who seeks to invoke the doctrine of forum non
conveniens must identify another forum that is in a better
position to dispose of the action fairly and efficiently. Factors
relevant to this question will vary depending on the context, but
may include, among others, the locations of parties and witnesses,
related or parallel proceedings, and the recognition and
enforcement of judgments.
This decision should be read in conjunction with the companion
cases released at the same time: Breeden v. Black and
Éditions Écosociété Inc.v. Banro Corp.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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